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(Prayer in all the Writ Petitions : Writ Petition filed under Article 226 of the Constitution of India seeking a Writ of Certiorarified Mandamus, to call for the records pertaining to G.O.Ms.No.20 MA & WS Department, dated 23.02.2006 of the first respondent herein as well as the consequential order passed by the 2nd respondent in Proceedings No.G.D.Na.Ka.No.E11/26214/2003, dated 27.02.2006 and quash the same in so far it relates to fixing the date of regularization from the date of the order and further direct the respondents to regularize the services of the petitioners from 27.05.2000 in their respective posts as per G.O.Ms.No.125 MA & WS Department, dated 27.05.1999 and grant arrears of pay and all other allowances as applicable.)
Common Order
1. These three Writ Petitions are filed for identical reliefs and as such, are taken up together and disposed of by this common order.
2. The prayer is in the nature of certiorarified mandamus calling for the records pertaining to G.O.Ms.No.20 Municipal Administration and Water Supply Department, dated 23.02.2006 and the consequential order, dated 27.02.2006 passed by the Commissioner, Corporation of Chennai and quash the same insofar as it relates to fixing the date of regularization from the date of order and to direct the respondents to regularize the services of the petitioner from 27.05.2000 in their respective posts as per G.O.Ms.No.125, Municipal Administration and Water Supply Department, dated 27.05.1999 with all arrears of pay, other allowances and consequential benefits.
3. In all these three Writ Petitions, totally 35 employees are involved. 11 employees, who are the petitioners in W.P.No.24341 of 2013, are working as Malaria Assistants/Office Assistants/Tax Collectors/Junior Assistants in the Health Department of Corporation of Chennai. 12 employees, who are the petitioners in W.P.No.24342 of 2013 are employed as Storm Water Drain Workers in the Corporation of Chennai. 13 employees, who are the petitioners in W.P.No.24343 of 2013 are employed as Road Workers/Office Assistants/Tax Collectors/Junior Assistants in the Corporation of Chennai.
4. The case of the petitioners is that the Corporation of Chennai and various other corporations started employing persons such as the petitioners for performing various jobs in several of their departments on daily wage basis/temporary basis etc. While so, the Government, after taking a decision to regularize the services of these employees, framed a scheme vide G.O.Ms.No.125 Municipal Administration and Water Supply Department, dated 27.05.1999. By the said Government Order, it was mandated that all those casual workers who were appointed on daily wage basis prior to 04.05.1999 shall be included in the list prepared for the purpose of regularization of their services. It was further directed that the services of these persons be appointed in the entry level post in accordance with their qualifications and shall be regularized with effect from the date of such appointment along with all other service benefits. It was further ordered that the employees be paid a sum of Rs.2,000/- per month as consolidated pay for a period of one year and thereafter, be brought under the timescale of pay. Therefore, as per the Government Order, after identifying the regular posts, to which all these employees are qualified, they should have been immediately absorbed and upon the expiry of the period of one year that is by 27.05.2000, they should have been brought under the regular scale of pay and their services should be treated as permanent from the said date. However, the Government Order was not implemented and W.P.No.11909 of 2001 was filed and interim orders were also granted with reference to continuation of employment. Finally, the government issued G.O.Ms.No.20, Municipal Administration and Water Supply Department, dated 23.02.2006, by which, it ordered regularization of services of 912 NMRs like the petitioners in the various categories in the entry level posts and 400 workers, working for street light maintenance in the Electrical Department, in all totalling 1,312 persons in the regular establishment from the date of issue of the order.
5. Subsequently, the said Government Order was also implemented by the consequential order of the second respondent on 28.02.2006 bringing the petitioners under the timescale of pay. Thus, it can be seen that when the Government framed the scheme to regularize the services of the petitioners, immediately, from the date of issue of G.O.Ms.No.125, by placing them on consolidated pay as against the regular vacancies to which they were all eligible, their regularization was delayed by 5 years and the same is nothing but an administrative delay. Under the circumstances, the employees of several other corporations filed the Writ Petitions before this Court in C.Philip Antony and Ors. Vs. State of Tamil Nadu and Ors., in W.P.(MD).No.4068 of 2009 found that G.O.Ms.No.125, dated 27.05.1999 still held the field even after the issue of subsequent G.O.Ms.No.21, dated 23.02.2006. As per the earlier Government Order, the petitioners will be entitled to regular timescale of pay on completion of one year. Even assuming that there was a temporary ban, after lifting of the ban, the benefit that was originally conferred, should flow without any restrictions.
6. It was further held that the respondents cannot postpone the petitioner’s right to the regular timescale of pay and accordingly, G.O.Ms.No.21, Municipal Administration and Water Supply (M.C.3) Department, dated 23.02.2006 was set aside inasmuch as the petitioners therein are concerned and they were directed to be regularized on completion of the period of one year with all consequential benefits. A similar order has also been passed in P.Samuthiram Vs. The Secretary to Government and Ors. in W.P.(MD).No.14119 of 2011. Since several orders came to be passed, Writ Appeals were filed.
7. It can be seen that since different views were taken, the matter was referred to the Full Bench and by the judgment in S.Dhanasekaran and 24 Ors. Vs. Government of Tamil Nadu and Ors.(2013 (6) CTC 593), the Full Bench held that the employees can be regularized after the completion of the respective period of consolidated pay as per the Government Orders from the date of their initial appointment.
8. As a matter of fact, Review Applications were also filed and the Full Bench, once again considered Review Application (MD).No.87 of 2014 etc., and by the order, dated 30.05.2017, the Full Bench held that the employees should be regularized as per the original Government Order governing their regularization and any orders passed by any municipality regularizing the service based on G.O.Ms.No.21, dated 23.02.2006, shall be recalled and appropriate orders should be passed as held by the Full Bench. In view of the above, the petitioners prayed that since their case is also governed by the earlier G.O.Ms.No.125, dated 27.05.1999 and since one year period expires as of 27.05.2000, they should be regularized from the said period.
9. The Writ Petition is resisted by the first respondent by filing the counter-affidavit. It is stated that when officially, G.O.Ms.No.20, dated 23.02.2006 was issued, the regularization can be done only with effect from the said Government Order. The judgment of the Hon’ble Supreme Court of India in The Secretary to Government, School Education Department, Chennai Vs. R.Govindaswamy and Ors.(2014 (3) SCALE 34) is also relied upon to contend that the petitioners cannot approach this Court under Article 226 of the Constitution of India for retrospective regularization.
10. The Corporation of Chennai has also filed a counter, whereby, it is stated that G.O.Ms.No.125 had only called for particulars and regularization is conferred only by G.O.Ms.No.20, dated 23.02.2006 and the services of the petitioners before they were brought in by way of timescale of pay, cannot be counted for the purpose of pension or for the other purposes. The judgment of the Hon’ble Supreme Court of India in S.L.P.(C).Nos.5686-5687 of 2014 is relied upon to contend that the employees cannot claim regularization as a matter of right.
11. Heard Mr.K.S.Viswanathan, learned Senior Counsel for the petitioners. On behalf of the first respondent, though the learned Government Advocate made his submissions by pointing out to the counter-affidavit, the learned Counsel for the corporation is absent. As a matter of fact, repeated opportunities were given by this Court for their appearance and contentions. Even at the time of reserving orders, the learned Government Advocate was requested to inform and it was also informed in open court that the Corporation of Chennai is free to submit any written arguments, but, till date, no written submissions are also filed.
12. I have considered the rival submissions made on either side and perused the material records of the case.
13. The matter had a chequered history and Review Applications have been filed and finally, the Rev.Aplc.(MD).No.87 of 2014 etc., were dealt with by the Full Bench by the judgment, dated 30.11.2018 and it is essential to extract paragraph Nos.28 and 29 of the said order which held as follows:-
“28. In the present case, by virtue of G.O.Ms.No. 101 dated 30.04.1997 and G.O.Ms.No.71 dated 05.05.1998, the right to be considered for regularization on completion of the mandatory period had already accrued to the petitioners on the date of their appointment. The only condition is to be satisfied is the required number of days, of course without blemish. Therefore, any subsequent Government Order cannot take away the fundamental right of the petitioners to be considered for appointment.
29. In the result, Rev.Aplc.No.87 of 2014 is dismissed and Rev.Appl.Nos.223 and 254 of 2015 are allowed on the following terms:
a)Persons employed as sanitary workers and covered by G.O.Ms.No.101 dated 30.04.1997 and G.O. Ms.No.71 dated 05.05.98 are entitled to be regularized after the completion of the respective period under consolidated pay as specified in the Government Orders from the date of their initial appointment.
b)Any orders passed by any Municipality regularizing the service based on G.O.Ms.No.21 dated 23.02.2006, Full Bench Judgment dated 29.11.2013 and G.O.Ms.No.166 dated 31.12.2014 shall be recalled and appropriate orders shall be passed as held above.”
14. It is true that as per Govindasamy’s case (cited supra) the Hon’ble Supreme Court of India had held that the High Court, in exercise of power under Article 226 of the Constitution of India, cannot order retrospective regularization and the employees who were also appointed on casual basis or temporary basis, cannot claim a right of regularization from a particular date. But, in this case, the distinction being an existing scheme, that is framed by the Government. A perusal of G.O.Ms.No.125, dated 27.05.1999, it gives the cut-off date, on which, an employee should be in service. With reference to the Corporation of Chennai, it is mentioned as 04.05.1999 in paragraph No.3.1 of the Government Order. So, all the employees in service, as on 04.05.1999, are entitled for regularization. The further conditions are that the concerned Corporation has to check their qualifications and fit them in the vacancies in the entry level posts and upon fitting them for a period of one year, they will be under consolidated pay and thereafter, they have to be brought under the timescale of pay. The date, on which, they are brought to the timescale of pay, is to be treated as the date of regularization.
15. According to the above Government Order, the Commissioner, Corporation of Chennai, prepared a list of 400 daily wage workers and 256 skilled wage workers to be brought into the regular establishment. By paragraph No.4 of the Government Order, the Government decided to accept the proposal of the Commissioner, however, ordered that they should be brought into regular timescale of pay with immediate effect. It can be seen that the said order is directly against the pronouncement of the Full Bench of this Court that the subsequent Government Order cannot take away the right of the petitioners to be considered for appointment. At the same time, as prayed for in the Writ Petitions, it cannot be said that in every case, the petitioner would be entitled for regularization with effect from 02.05.2000. Once the Corporation of Chennai had found that these petitioners were on service as on 04.05.1999 making them eligible to be considered for permanent employment, even though the Commissioner, Corporation of Chennai took some time to prepare the list, the Commissioner ought to have seen that whether there were vacancies in the regular posts as on 27.05.1999 and wherever the vacancies are there in the regular posts, ought to have fit them as against the regular posts and sanctioned consolidated pay at the rate of Rs.2,000/- for a period of one year and conferred permanency with effect from 27.05.2000. The said exercise was not undertaken. It is further stated across the bar that the appeals are pending on the file of the Hon’ble Supreme Court of India. These matters need not be kept pending but the directions issued in terms of the Full Bench can be made subject to the ultimate outcome.
16. Therefore, these Writ Petitions are allowed on the following terms:-
(i) As per the list that was originally prepared and sent by the Commissioner, Corporation of Chennai to the Government at the time of passing G.O.Ms.No.20, dated 23.02.2006, the Corporation of Chennai shall undertake the exercise of fitting the petitioners in the available entry level posts, in which, they were later accommodated by checking whether the vacancies were available as on 27.05.1999 and wherever the vacancies are there, they must be fitted against the said vacancies and by treating their services as consolidated services, they must be granted regularization with effect from 27.05.2000;
(ii) If the vacancies are not there, then, the date of regularization should be construed from the date of lapsing of the one year from the date on which the vacancies arises.
(iii) If the particulars as to the vacancies position etc., are not available, then, the Corporation will have no other option than to consider the petitioners as absorbed in the regular vacancy on 27.05.1999 and confirm the petitioners service with effect from 27.05.2000;
(iv) Revised orders of regularization shall be issued and the said additional period shall be taken as service for the purpose of pension and other service benefits. However, the petitioners will not be entitled for any arrears/back-wages considering the sheer efflux of time.
(v) The above arrangement will be subject to the final outcome of the orders of the Hon’ble Supreme Court of India. The Corporation will be entitled to revise the orders passed in respect of the petitioners in tune with the ultimate orders that will be passed by the Hon’ble Supreme Court of India;
(vi) There shall be no order as to costs.
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